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[2013] ZAWCHC 159
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Faro v Bingham NO and Others (4466/2013) [2013] ZAWCHC 159 (25 October 2013)
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT)
Case No: 4466/2013
In the matter between: Not reportable
TARRYN FARO
APPLICANT
And
MARJORIE
BINGHAM N.O.
(in
her capacity as executrix of the deceased estate of Moosa Ely –
Estate No 4190/2010)
FIRST
RESPONDENT
MUJAID ELY
SECOND
RESPONDENT
SHARIEF
ELY
THIRD
RESPONDENT
TASHRICK ELY
...........................................................................
FOURTH
RESPONDENT
MUSLIM JUDICIAL COUNCIL
..........................................................
FIFTH
RESPONDENT
IMAM IB SABAN
..............................................................................
SIXTH
RESPONDENT
THE MASTER OF THE HIGH COURT
.......................................
SEVENTH
RESPONDENT
THE MINISTER OF JUSTICE AND
CONSTITUTIONAL DEVELOPMENT
...........................................
EIGHTH
RESPONDENT
Coram
: ROGERS J
Heard: 10 OCTOBER 2013
Delivered: 25 OCTOBER 2013
______________________________________________________________
JUDGMENT
______________________________________________________________
ROGERS J:
Introduction and factual overview
This case highlights the vulnerability of women in
Muslim marriages. The decision of the Constitutional Court in
Daniels v Campbell NO & Others
[2004] ZACC 14
;
2004 (5) SA 331
(CC)
determined that the word ‘spouse’ as used in the
Intestate Succession Act 81 of 1987
and the word ‘survivor’
as used in Maintenance of Surviving Spouses Act 27 of 1990 were to
be interpreted as including
the surviving partner to a monogamous
Muslim marriage, even though such a marriage may not have been
solemnised by a marriage
officer and thus not constitute a marriage
for purposes of civil law. The contrary view was said to be a
discriminatory interpretation
out of step with ‘the new ethos
of tolerance, pluralism and religious freedom which had consolidated
itself even before
the adoption of the interim Constitution’
(para 24). In
Hassam v Jacobs NO & Others
2009 (5) SA 572
(CC)
s 1(4)(f)
of the
Intestate Succession Act was
found to be
unconstitutional, resulting in an order which afforded protection to
multiple spouses in a polygamous Muslim marriage.
At present,
however, there is no statute which deals comprehensively with the
legal position of persons married by Islamic rites.
Importantly for
purposes of the present matter, there is no legislation regulating
the dissolution of such unions. Because such
a union is not regarded
as a ‘marriage’ for purposes of the Divorce Act 70 of
1979, the latter Act does not regulate
the dissolution of Islamic
marriages (except where they were solemnised by a marriage officer
in accordance with our law). The
evidence in this case shows that a
husband in an Islamic union may throw off his wife with relative
ease and informality. In
accordance with current law, a dissolution
of an Islamic marriage in a manner recognised by the Islamic faith
results in the
woman no longer being a surviving spouse for purposes
of the
Intestate Succession Act and
the Maintenance of Surviving
Spouses Act.
The circumstances of this case afford an illustration
of the woman’s vulnerability. The facts may be briefly stated
though
the summary will not convey the human drama and emotions at
play. The applicant began living with the late Moosa Ely during
November
2006. Because Moosa Ely shares a surname with the second,
third and fourth respondents I shall refer to him as Moosa and shall
refer to the second, third and fourth respondents by their first
names (Mujaid, Sharief and Tashrick). Moosa had an adult son,
Tashrick, from a prior marriage. The applicant and Moosa had their
first child, Sharief, during November 2007. On 28 March 2008
Moosa
and the applicant got married in accordance with Islamic rites. Imam
Saban officiated. Because Imam Saban was not a licensed
marriage
officer, the union did not constitute a marriage for purposes of
civil law.
During 2009 Moosa was diagnosed with lung cancer.
According to the applicant, she cared for him during his illness. On
the morning
of 24 August 2009 the applicant and Moosa had an
argument about his alleged failure to give her money for food. After
the argument
she accompanied him for chemotherapy. On their way home
Moosa stopped their car at the home of Imam Saban. He told the Imam
that
he was sick and tired of the applicant and wanted the Imam to
pronounce a
Tal
ā
q
.
Without talking to the applicant Imam Saban gave Moosa a
Tal
ā
q
certificate. In accordance with Islamic rites, this dissolved the
marriage. The applicant was seven months pregnant with their
second
child, Mujaid, who was born on 26 October 2009.
It is common cause on the evidence before me, including
expert evidence regarding the tenets of Islam, that the form of
Talā
q
pronounced by Imam Saban was revocable during the so-called
ʼIddah
period. In the applicant’s case, because she was pregnant the
ʼIddah
period expired when she gave birth to the child
she was carrying. The predominant view in the Islamic religion is
that the
Tal
ā
q
may be revoked not only by express words but by the resumption of
sexual relations between the parties. The applicant avers that
she
and Moosa resumed intimacy shortly after 24 August 2009 and that no
further
Tal
ā
q
was pronounced before Moosa died on 4 March 2010.
The fifth respondent in the present application is the
Muslim Judicial Council (‘the MJC’). The MJC is a
private religious
body. Its activities are not regulated by
legislation. There is no evidence that it is vested with any special
authority or jurisdiction
under the tenets of Islam. It is
nevertheless a body which among other things considers whether
Islamic unions have been dissolved
in accordance with Islamic rites.
Naziema Bardien (‘Bardien’) is Moosa’s adult
daughter from an earlier marriage.
She considered herself to have an
interest in Moosa’s estate. On 8 April 2010, and without the
applicant’s knowledge,
Bardien obtained from the MJC a
certificate declaring that the marriage between Moosa and the
applicant had been annulled. This
was presumably based on the
Talā
q
pronounced by Imam Saban.
The applicant was appointed as executrix of Moosa’s
estate on 21 April 2010. She considered that she was Moosa’s
surviving
spouse. In the light of the annulment certificate issued
by the MJC, the Master (who is the seventh respondent) told the
applicant
that it would not be possible to wind up the estate until
the dispute as to her marital status was resolved. During June 2010
the applicant made an affidavit concerning the post-
Tal
ā
q
reconciliation and also obtained corroborating affidavits from
Tashrick and from a social worker, Esther Julius (‘Julius’).
These affidavits were presented to the MJC which on 29 July 2010
issued a letter stating that from new evidence it appeared that
Moosa and the applicant were husband and wife at the time of his
death.
After this development Bardien approached an attorney,
Marjorie Bingham (‘Bingham’), the first respondent in
the present
application. She wrote to the Master on 19 August 2010
attaching the annulment certificate of 8 April 2010 and asking for
the
removal of the applicant as executrix. Bingham was presumably
unaware of the further letter issued by the MJC on 29 July 2010.
Upon learning of this later development, Bingham approached Tashrick
who made two further affidavits in which, among other things,
he
denied that there had been a reconciliation and stated that his
previous ‘affidavit’ had been blank when he signed
it
and that he had been told it was needed to prove that Mujaid and
Sharief were Moosa’s children. Bingham presented Tashrick’s
further affidavits to the MJC which on 2 September 2010 issued a
further letter withdrawing the letter of 8 April 2010 and confirming
that the
Tal
ā
q
stood. Bingham forwarded the latest MJC letter to the Master.
The applicant’s attorney, Mr YM Patel (‘Patel’),
responded on 21 September 2010 by forwarding to the Master the
affidavits which the applicant had made and procured during June
2010. The Master replied by stating that Patel would have to
act in
accordance with the MJC’s certificate of 2 September 2010.
The applicant claims that during October 2010 Tashrick
and Bardien forced her out of the family home where she had lived
with
Moosa and that her belongings were thrown into the yard. The
applicant was thereafter obliged to live in shelters or on the
street.
The two minor children were taken into care.
Because the Master was of the view that the applicant
was not Moosa’s surviving spouse, she required the applicant
during
November 2010 to furnish security for her administration of
the estate. (In terms of
s 25(1)
of the
Administration of
Estates Act 66 of 1965
a surviving spouse is not required to furnish
security.) Patel advised the Master that a hearing of the MJC would
be convened
to sort out the confusion. Patel also asked to be
furnished with a copy of Tashrick’s retracting affidavits. On
15 June
2011 Patel wrote to the Master stating that he was still
awaiting a proposed hearing date from the MJC. The Master notified
Patel
on 5 July 2011 that the applicant was required to return her
letters of executorship because she had failed to provide security.
On 3 August 2011 Patel replied that owing to his difficulty in
contacting the applicant he was obliged to withdraw as her attorney.
(The applicant was during this period living in shelters or on the
street.) The Master wrote to Bingham on 26 August 2011 enquiring
whether she was arranging a meeting with the MJC. She replied on 10
November 2011 that the hearing would take place in the near
future.
There was apparently a meeting of the MJC on 7 December
2011 attended by Bingham. The applicant was not aware of the meeting
and
was not present. There are no minutes or recording of the
meeting. On the same day the MJC issued a certificate confirming
that
there had not been a reconciliation between Moosa and the
applicant and that the
Tal
ā
q
issued on 24 August 2009 was thus valid. It appears that this
decision must have been based on Tashrick’s retracting
affidavits. Bingham immediately notified the Master of this
development and on the same day the latter addressed a registered
letter to the applicant informing her that she had been removed as
executrix in terms of
s 54(1)(v)
of the
Administration of
Estates Act.
On
10 April 2012 Bingham was appointed as executrix of
Moosa’s estate. It seems that shortly thereafter the applicant
acquired
the assistance of her current attorneys, the Women’s
Legal Centre (‘the WLC’). During May 2012 the WLC
notified
Bingham that they were formally lodging a claim on behalf
of the applicant on the basis that there had been a reconciliation
during the
ʼIddah
period and that the applicant should
thus be recognised in the liquidation and distribution account as a
surviving spouse. Bingham
evidently rejected the claim because on 1
October 2012 she lodged an account which accorded no recognition to
the applicant as
a surviving spouse. The account also did not
recognise a claim on the estate which Bardien had made.
On 22 October 2012 the WLC, acting on behalf of the
applicant, lodged an objection to the account on several grounds.
Although
not expressly so stated in the WLC’s letter, the
objections were submitted in terms of
s 35(7)
of the
Administration of Estates Act. The
only objection of relevance for
present purposes is the third one, which was in the following terms:
‘
5. Our
client further instructs that you have failed to include our client
as a beneficiary of the estate.
6. Our client was married to the
deceased in accordance with Islamic law at the time of his death and
as such she is entitled to
be treated as a beneficiary of the
deceased estate in terms of the Maintenance of Surviving Spouses Act…
and the
Intestate Succession Act&hellip
;.’
As provided for in s 35(8) of the Act, Bingham as
executrix responded to the objections on 23 November 2012, stating
that
she was in possession of a certificate from the MJC confirming
that the marriage had been dissolved and stating that the relevant
documents were on file with the Master.
On 13 February 2013 the WLC wrote to Bingham, with a
copy to the Master, denying that the applicant was not a surviving
spouse
and repeating that there had been a reconciliation during the
ʼIddah
period.
In a letter dated 25 February 2013 (which the WLC only
received on 6 March 2013) the Master dismissed the applicant’s
objections.
Regarding her alleged status as a surviving spouse, the
Master said in her letter that according to the MJC’s letter
dated
2 September 2010 the applicant was not the wife of the
deceased.
The relief sought
The present application was launched on 25 March 2013.
Because the application incorporated relief as contemplated in
s 35(10)
of the
Administration of Estates Act (ie
an order
setting aside the Master’s disallowance of the objection
regarding the applicant’s marital status), it had
to be made
within 30 days of the Master’s disallowance of the objection.
In Part A of the notice of motion interim relief was
sought to preserve the status quo in the estate pending the
determination
of the relief sought in Part B. Part A also sought the
appointment of a curator
ad litem
for the two minor children
(Mujaid and Sharief). Interim relief was granted on 18 April 2013
and Adv F Jakoet of the Cape Bar
was appointed as the curator
ad
litem
for the minor children.
The notice of motion was framed as a review in
accordance with
rule 53
and thus called upon the Master to furnish
the record of the proceedings sought to be set aside. The Master
furnished her record
on 12 June 2013. The applicant thereafter filed
an amended notice of motion and supplementary founding affidavit.
The relief
claimed in Part B of the amended notice of motion is in
the following terms:
‘
B1.
Declaring that the marriage concluded in terms of Islamic law between
the applicant and one Moosa Ely subsisted at the time
of his death on
3 March 2010;
B2. Declaring that the applicant
was the “spouse” of Moosa Ely for purposes of the
Intestate Succession Act… and
a “survivor” for
purposes of the Maintenance of Surviving Spouses Act…;
B3. Reviewing and setting aside
the decision/s of the [Master], taken on or about 28 September 2010
and 25 February 2013 respectively,
declaring that the applicant was
not the spouse or survivor of Moosa Ely at the time of his death;
B4. Declaring that the
[Master’s] reliance on the letter of the [MJC] dated 2
September 2010 is unlawful and unconstitutional;
B5. Declaring that the
[Master’s] failure to hold an enquiry in accordance with the
provisions of the
Promotion of Administrative Justice Act 3 of 2000
into the validity of the applicant’s marriage to Moosa Ely
prior to making the decisions referred to in paragraph B3 to be
unlawful and unconstitutional;
B6. Directing the [Master] to
take all steps necessary including but not limited to ensuring that
the applicant and [the two minor
children] are provided with their
respective portions of the deceased estate of Moosa Ely in accordance
with the provisions of
the
Intestate Succession Act and
the
Maintenance of Surviving Spouses Act;
B7. Declaring that marriages
solemnised according to the tenets of Islamic law be deemed to be a
valid marriage in terms of the
Marriage Act 25 of 1961;
B8. In the alternative to
paragraph B7 above, an order declaring that the common law definition
of marriage be extended to include
Muslim marriages;
B9. In the alternative to
paragraphs B7 and B8 above, an order directing the eighth respondent
[the Minister of Justice and Constitutional
Development], within 18
(eighteen) months of the granting of this order, to put in place
policies and procedures which accord with
the provisions of the
Promotion of Administrative Justice Act 3 of 2000
, and which regulate
the holding of enquiries by the [Master] into the validity of
marriages solemnised according to the tenets
of Islamic law and the
validity of divorces granted by any person or association according
to the tenets of Islamic law, and that
such enquiries be necessary in
all cases where persons purporting to be spouses in accordance with
the tenets of Islamic law of
deceased persons seek to claim benefits
from a deceased estate in terms of the provisions of the
Intestate
Succession Act and
the Maintenance of Surviving Spouses Act;
B10. Declaring that the
[Minister’s] failure to implement policies and procedures …
[as
contemplated in B9]
to be unlawful and
unconstitutional;
B11. Removing [Bingham] as
executor of the deceased estate of Moosa Ely;
B12. Declaring that [Bingham] is
not entitled to any remuneration in her capacity as executor of the
deceased estate of Moosa Ely;
B13. Directing that the costs of
the application in Part B be paid by the [Master and Minister]
jointly and severally, the one paying
the other to be absolved and
any other respondents who oppose the relief sought.’
Removal of executor
The notice of motion in its original form did not seek
the removal of Bingham as executrix. Bingham filed an affidavit on
18 July
2013. Although her affidavit was filed after the delivery of
the supplementary founding papers and the supplementary notice of
motion (which introduced the prayer for her removal), she did not
traverse the allegations in the supplementary founding papers.
She
stated in her affidavit that she did not oppose the relief sought by
the applicant. She nevertheless dealt with the aspersions
cast on
her in the founding affidavit.
Despite Bingham’s statement that she did not
oppose the application, heads of argument were filed on her behalf
and she
was represented at the hearing by counsel, Mr Banderker. The
latter stated at the commencement of proceedings that Bingham did
now oppose the application but only in regard to the prayers
relating to her removal and remuneration. Ms Bawa SC, who appeared
for the applicant (leading Ms Adhikari), did not object to this
stance.
On completion of Ms Bawa’s submissions in support
of the application as a whole, I was informed by Mr Banderker that
his
client was willing to resign as executrix and to waive her right
to remuneration. The legal representatives for the applicant and
Bingham agreed upon the terms of an order which has rendered it
unnecessary for this court to pronounce on the relief sought
in
paragraphs B11 and 12 of the amended notice of motion. This did not
involve a concession by either side regarding the merits
of the
criticisms levelled at Bingham.
Applicant’s claim against the estate
The relief sought in prayers B1 to B6 of the amended
notice of motion relates to the applicant’s claim against the
estate
and to facts peculiar to her position. Those prayers are all
directed, in one way or another, at setting aside the Master’s
failure to uphold an objection which would have resulted in the
applicant being recognised as Moosa’s surviving spouse
for
purposes of the
Intestate Succession Act and
the Maintenance of
Surviving Spouses Act.
Section 35(7)
of the
Administration of Estates Act
entitles
a person interested in an estate to lodge with the Master
an objection to the executor’s liquidation and distribution
account.
The objection must be accompanied by the reasons for the
objection. In terms of
s 35(8)
the executor is entitled to
comment to the Master regarding the objection.
Section 35(9)
reads
thus:
‘
If,
after consideration of such objection, the comments of the executor
and such further particulars as the Master may require,
the Master is
of the opinion that such objection is well-founded or if, apart from
any objection, he is of the opinion that the
account is in any
respect incorrect and should be amended, he may direct the executor
to amend the account or may give such other
direction in connection
therewith as he may think fit.’
Section 35(10)
then provides as follows:
‘
Any
person aggrieved by any such direction of the Master or by a refusal
of the Master to sustain an objection so lodged, may apply
by motion
to the Court within thirty days after the date of such direction or
refusal or within such further period as the Court
may allow, for an
order to set aside the Master’s decision and the Court may make
such order as it may think fit.’
Mr Papier, who appeared for the Master and Minister,
indicated that his clients abided the court’s decision on the
merits
of the applicant’s objection. He offered the view that
on the evidence now before the court the applicant’s claim to
be Moosa’s surviving spouse might well have been established.
He argued, however, that the Master had not failed properly
to
perform her duties in her consideration of the objection.
It is common ground between the applicant on the one
hand and the Master and Minister on the other that the application
contemplated
by
s 35(10)
is neither a review in the strict
sense nor an ordinary appeal in which the appellant is confined to
the record which served
before the original decision-maker but is an
appeal in the wide sense described in
Tikly & Others v
Johannes NO & Others
1963 (2) SA 588
(T) at 590G-591A, ie ‘a
complete re-hearing of, and fresh determination of the merits of the
matter with or without additional
evidence or information’.
This view of the nature of the similar remedy conferred by
s 407(4)(a) of the Companies
Act 61 of 1973 was approved by a
full bench of the then Transvaal Provincial Division in
South
African Bank of Athens Ltd v Sfier (also known as Josef) &
Others
1991 (3) SA 534
(T) at 536H-I where De Klerk J said that
in such proceedings new facts can be adduced and oral evidence
allowed (see also
Fourie’s Poultry Farm (Pty) Ltd v
Kwanatal Food Distributors (Pty) Ltd (in Liquidation) & Others
1991 (4) SA 515
(N) at 524D-525G). In
Ferreira v Die Meester
2001 (3) SA 364
(O) Van Coller J expressed his agreement with a
submission that an application in terms of s 35(10) was an
appeal of the
second kind mentioned in
Tickly
. The second
category of
Tikly
appeal is an appeal in the ordinary strict
sense, namely a re-hearing on the merits but limited to the evidence
or information
on which the decision under appeal was given. If that
is what the learned judge intended to hold, I must respectfully
disagree.
That an application in terms of
s 35(10)
of the
Administration of Estates Act (and
similar procedural remedies
relating to the liquidation and distribution accounts in respect of
insolvent estates and companies
in liquidation) is a wide appeal in
which new evidence can be adduced is consistent with the view which
has often been expressed
that the Master cannot, when an objection
requires a resolution of factual disputes, ordinarily be expected to
determine such
disputes. In such cases an application in terms of
s 35(
10) might well necessitate a referral to oral evidence,
and this would constitute evidence which was not before the Master.
For
example, in
CP Smaller (Pty) Ltd & Others
1977 (3) SA
159
(T) King AJ said, with reference to
s 111(2)
of the
Insolvency Act 24 of 1936
, that there was no provision in the Act
for the Master to hear evidence as a result of an objection to an
account and that he
could not decide questions of fact upon which
the rights of creditors
inter se
depended (163D-E). This view
of
s 111(2)
of the
Insolvency Act, which
appears to me to be
equally applicable to
s 35(10)
of the
Administration of Estates
Act, was
approved by Conradie J (as he then was) in
Broodryk v
Die Meester en ‘n Ander
1991 (4) SA 825
(C) at 830H-831C
where the learned judge remarked that there were no appropriate
procedures or structures for the Master to resolve
factual disputes
between creditors. In
Jewaskewitz v The Master of the High Court
Polekwane & Others
[2013] ZAGPPHC 118 this approach was
pertinently held to apply to
s 35(9)
of the
Administration of
Estates Act (see
paras 8-9). In a different context a similar point
was made by Hoexter JA (who delivered the majority judgment) in
Fey
NO & Whiteford NO v Serfontein & Others
1993 (2) SA 605
(A) in support of a conclusion that the common law power of a court
to remove the trustee of an insolvent estate had not been
taken away
by the statutory power conferred on the Master to remove a trustee
on the grounds stated in
s 60
of the
Insolvency Act. The
learned Judge of Appeal said the following in that regard (at
614F-H, my underlining):
‘
It may
be that by entrusting the statutory removal of a trustee to the
Master the Legislature sought to provide a remedy which is
cheaper
and more expeditious. In my judgment, however, it is not an exclusive
remedy; and the Court’s common-law power of
removal remains.
The possibility of review proceedings under s 151 of the Act
would represent cold comfort to litigants in
the position of the
plaintiffs in the present case. All the allegations against the
defendants have been strenuously denied by
the latter in their
opposing affidavits.
The
Master’s office, from the nature of things, is ill-equipped to
determine disputed facts
.
The recognised procedure for settling disputed facts is by trial
action. A Court is the obvious tribunal for the determination
of such
disputed matters. Grave injustice may be done to a litigant who is
denied the ordinary procedure adopted in investigating
the truth of
conflicting allegations.’
It must be remembered that the primary duty to assess
disputed claims lies with the executor
(ss 29
-
32
of the
Administration of Estates Act). If
an executor disputes a claim he
may by notice in writing require the claimant to lodge an affidavit
setting forth details of
the claim and, with the consent of the
Master, require the claimant and others to appear before the Master
or a magistrate to
be examined under oath in connection with the
claim
(s 32).
An executor is, among other things, required to
make due and proper enquiries and to obtain as much information as
possible in
identifying the beneficiaries (
Rubinow & Another
v Friedlander NO & Others
1953 (1) SA 1
(C) at 15C-D). If
the executor rejects a claim and frames the liquidation and
distribution account accordingly, the dismissal
by the Master of an
objection by the claimant because of factual disputes which the
Master thinks he cannot resolve means that
the executor’s
primary determination stands but that the aggrieved claimant is at
liberty to approach a court for relief
in terms of
s 35(10).
Given the nature of an application in terms of
s 35(10)
, it is unnecessary – in order to reach a finding
in the applicant’s favour – to conclude that the Master
did
not properly consider the applicant’s objection or that
his decision was wrong on the information placed before him. I am
satisfied that on the evidence placed before me, the applicant is
entitled to be recognised as Moosa’s surviving spouse.
The
evidence to this effect includes the affidavits the applicant has
made in the current proceedings, the affidavit which Julies
has made
in the current proceedings, as well as affidavits by Imam Saban and
by Hamiedah Ganiem (‘Ganiem’), who is
the chief
executive director of Azaad Youth Services. The applicant has
averred in her affidavits in the present matter that
sexual
relations were resumed between her and Moosa during the
ʼIddah
period. Julies by her confirmatory affidavit in the current
proceedings has confirmed the affidavit she made in June 2010 and
has also confirmed the circumstances under which Tashrick signed his
first affidavit (an affidavit which corroborated the applicant’s
version of a reconciliation). Although Imam Saban’s affidavit
does not state that there was in fact a reconciliation (this
would
not have been within his personal knowledge), he confirms that while
Moosa was still alive the applicant approached him
and informed him
that she had reconciled with Moosa. Saban told her that she should
tell Moosa to approach him. Saban had no
further communication with
them.
The strongest evidence, apart from the applicant’s
own averments, is provided by the affidavit of Ganiem, who heads up
the
NGO for which Julies was working as an agent. Ganiem says that
she met the applicant in 2007 while conducting a youth project in
the Kensington area. The applicant approached her from time to time
for assistance and guidance in relation to the problems she
was
experiencing in her life. Ganiem states that during August 2009 the
applicant approached her at her office without an appointment.
This
was shortly after the
Talā
q
had been issued. The applicant was pregnant and was accompanied by
her son Sharief. The applicant complained that Moosa was not
financially maintaining her or the minor child. The applicant also
told Ganiem about the
Talā
q
which had been pronounced. Ganiem asked the applicant whether she
and Moosa were still living together. The applicant replied
in the
affirmative and added that they were sharing a bed and having sexual
intercourse. Ganiem told the applicant that in terms
of Sharia law
the resumption of marital relations had the effect of invalidating
the
Talā
q
.
Ganiem thereafter decided to contact Moosa to discuss his
responsibilities towards his family. She saw him about a week after
seeing the applicant. She asked him if he still loved his wife and
he responded that he did. She asked him about the
Talā
q
and whether he and the applicant were still sexually active. Moosa
replied in the affirmative and said that as far as he was
concerned
he was still married to the applicant. Throughout his consultation
with Ganiem, Moosa referred to the applicant as
his wife.
Tashrick, who was cited as the fourth respondent, did
not file a notice of opposition and has not filed any affidavit in
the current
proceedings. (Although he did not file a notice of
opposition, the applicant’s attorneys have continued to serve
all subsequent
papers on him, including a copy of the order of 29
August 2013 in terms of which the application was postponed to 10
October
2013.) There is thus no evidence before me to contradict the
evidence adduced on behalf of the applicant. Tashrick has not
responded
to the allegations in the founding papers (confirmed by
Julies) regarding the manner in which his first affidavit was made
and
which refute his later version as to having been tricked into
signing a blank page. Even if Tashrick’s affidavit of June
2010 were disregarded because of his later recantation, the other
evidence in the present proceedings is sufficient to establish
that
there was a reconciliation with the resumption of sexual relations
during the
ʼIddah
period. There is expert evidence from
an Islamic scholar, Yaaseen Abass, that in the circumstances averred
by the applicant the
Talā
q
fell away and that the applicant remained married to Moosa by
Islamic rites. That this is the correct position in Islamic law
does
not ever seem to have been in dispute during the history of this
matter. In particular, the MJC apparently reached its decision
of 7
December 2011 on the strength of a factual finding that there had
been no reconciliation and not on a differing view as
to the tenets
of Islam applicable to the matter.
The applicant is thus entitled to an order in terms of
s 35(10)
setting aside the Master’s decision not to
uphold her objection and to an order declaring that the marriage
concluded in
terms of Islamic law between the applicant and Moosa
subsisted at the date of the latter’s death and that she is
thus to
be recognised as the ‘spouse’ of Moosa for
purposes of the
Intestate Succession Act and
as a ‘survivor’
for purposes of the Maintenance of Surviving Spouses Act. This is in
essence the relief sought in
prayers B1, B2, B3 and B6 of the
amended notice of motion. I do not think it is necessary to grant
declaratory orders in the
precise form sought in those paragraphs.
In particular, the upholding of the applicant’s objection in
the terms of the
order I propose to make will necessarily entail
that the liquidation and distribution account will have to be
amended to make
provision for her and the two minor children to
receive their respective portions of the deceased estate in
accordance with the
provisions of the
Intestate Succession Act and
the Maintenance of Surviving Spouses Act.
I do not consider it necessary or appropriate to grant
the declaratory order sought in prayers B4, ie that the Master’s
reliance on the MJC’s letter of 2 September 2010 was unlawful
and unconstitutional. The granting of that declaratory order
would
not affect the substantive relief to be granted to the applicant. It
is sufficient that her claim to be recognised as Moosa’s
surviving spouse has been established on its merits in the
proceedings before me.
I should record, however, that Mr Papier unequivocally
accepted that it was not the Master’s contention that she was
entitled,
in matters concerning Islamic marriages and their
dissolution, to rely on decisions of the MJC without regard to the
evidence.
I have no doubt that the Master’s position, as
conveyed through counsel, is correct. The MJC has no statutory or
religious
authority finally to determine questions as to whether a
marriage has been validly concluded or dissolved in accordance with
the tenets of Islam. If, for example, the evidence which served
before me had been placed before the Master as part of the
objection,
and if no contrary evidence raising a material factual
dispute had been put before him through the executrix, the Master
would
have been bound, I think, to reach the same conclusion I have
done. She could not properly have dismissed the objection merely
because at some stage in the past the MJC had issued a letter that
the marriage had been dissolved. The Master is obliged properly
to
assess the factual material before her in order to determine whether
the objection should be allowed or disallowed. She cannot
abdicate
her function to a body such as the MJC. It is important that the
Master’s adjudicative function should be properly
and
diligently performed so that an objector is not put to unnecessary
expense by having to approach a court.
Whether in this particular case the Master failed to
consider evidence other than the MJC’s letter is unnecessary
to decide.
The Master’s letter of 25 February 2013, in which
she disallowed the applicant’s objections, is formulated in a
way
which suggests that she might have relied solely on the MJC’s
letter of 2 September 2010. On the other hand, in the answering
papers the Master says that she does not rely merely on letters by
the MJC but that she cannot decide disputed questions of fact.
She
refers to the factual dispute that existed in the present case by
virtue of the retracting affidavits of Tashrick. Those
affidavits
were part of the material she had on file at the time she disallowed
the applicant’s objections. I have quoted
the very terse terms
of the objection filed on the applicant’s behalf by the WLC.
No reference was made to the affidavits
which the various parties
had made nor were any submissions advanced as to what factual
findings could properly be made in the
light of the various
affidavits. The more detailed material contained in the founding
papers and in the affidavits of Saban and
Ganiem was not available
to the Master. It is possible, having regard to what has been said
in the cases, that the Master could
legitimately have concluded, at
the time the objection served before her, that Tashrick’s
recanting affidavits created
a real dispute which could not be
resolved without oral evidence and that the objection should thus be
disallowed, leaving it
to the applicant to pursue her judicial
remedy in terms of s 35(10).
The relief sought in prayer B5, namely that the Master
should have held an enquiry in terms of
Promotion of Administrative
Justice Act
(‘PAJA’), seems to me to be in conflict with
existing case law as to the Master’s duties when faced with
conflicting
factual versions.
Section 35(9)
does not contemplate the
leading of oral evidence before the Master, which is what the
applicant envisages by way of prayer B5.
Whether
s 35(9)
should, in the light of constitutional principles, be interpreted so
as to require oral hearings in certain circumstances is
a question
best left, in my view, to the later hearing which (as will appear
hereunder) may yet take place in regard to the relief
sought in
prayers B7 to B10. I nevertheless observe that it may not be
conducive to the fair and expeditious resolution of disputes
in
deceased estates to require the Master to hold
viva voce
hearings
(assuming there is capacity in the Master’s office for such
hearings). An aggrieved party would still have a right
to approach
the court after the objection had been allowed or disallowed by the
Master, and oral evidence might then have to
be adduced afresh. The
wide appeal remedy afforded by
s 35(10)
seems to me to militate
against a requirement that an oral hearing should take place at the
objection stage.
Ms Bawa and Mr Papier were in agreement that the
Master’s determination of an objection in terms of
s 35(9)
constituted ‘administrative action’ for purposes of
PAJA. This does not necessarily mean that an oral hearing is
required by
s 4
of PAJA before the Master may properly
determine an objection.
Section 35
of the
Administration of Estates
Act sets
out a procedure which enables an aggrieved party to object
to the Master against an account; for the executor to comment to the
Master on the objection; and for the Master to call for further
information. In that process the Master does hear from both sides,
though in written form. The adequacy of this procedure (and there is
at the moment no challenge to the constitutional validity
of
s 35(9))
must be assessed with reference to the statutory
scheme as a whole. This scheme entitles the executor, before framing
the liquidation
and distribution account, to call for an affidavit
in support of a disputed claim and to request the Master to
authorise the
examination of the claimant and other witnesses; and
the statutory scheme further grants an aggrieved objector the right
to approach
a court for a decision on the merits and to adduce
further evidence in support of the disputed claim.
It is also not apparent to me on what basis oral
hearings by the Master, if required at all, could rationally be
confined to cases
relating to Islamic marriages. There is an
infinite variety of circumstances in which a person may be
prejudicially affected
by a decision of the Master to allow or
disallow an objection. If oral hearings have to be held to determine
whether an Islamic
marriage has been dissolved, I do not see why
oral hearings would not then be required in all cases where there
are material
factual disputes (and this would apply not only to
deceased estates but also to insolvent estates and companies in
liquidation).
The vulnerability of women in Islamic marriages does
not arise from evidential problems peculiar to their situation. In
the present
case, for example, the question whether the Islamic
union had been dissolved depended on whether there was a resumption
of sexual
relations between the parties during the
ʼIddah
period. That is a sensitive but not particularly difficult
evidential question. Far more difficult and complex matters of proof
may arise in relation to more mundane disputed claims which are
nevertheless of vital importance to the claimants. The vulnerability
of women in Islamic marriages arises primarily from the ease and
relative informality with which an Islamic union may be dissolved
at
the instance of the husband. The mandatory holding of hearings by
the Master when the dissolution of an Islamic marriage is
in dispute
would not address this source of vulnerability, which is a matter of
substantive Islamic law.
The broader constitutional relief
Prayers B7 to B10 seek broader relief unrelated to the
particular facts of the applicant’s case. Ms Bawa confirmed
that
the essential purpose of prayers B7 and B8 (which are expressed
in the alternative) is to achieve an outcome in which a marriage
solemnised in accordance with Islamic rites can be dissolved only by
a decree of divorce in terms of the Divorce Act.
Prayers B9 and B10, which are in the alternative to
prayers B7 and B8, are aimed at requiring the Minister to establish
policies
and procedures for the holding of enquiries by the Master
whenever the validity of the solemnisation or dissolution of an
Islamic
marriage is in issue. It is unclear to me whether the
Minister would have a power to lay down policies and procedures for
the
Master other than by making regulations as contemplated in
s 103(1) of the
Administration of Estates Act, in
particular
para (c) of that sub-section.
There is evidence before me that the national executive
is aware of the desirability of enacting legislation to regulate the
solemnisation
and dissolution of Islamic marriages in a manner
consistent with the Constitution. As early as July 2000 the South
African Law
Reform Commission circulated an issue paper on the
subject. There have been various interactions with stakeholders. The
history
up to the period March 2009, at least from the perspective
of the Department of Justice and Constitutional Development, appears
from the affidavit made by the then Director-General in the
Department, Mr Simelane, in the proceedings brought by the Women’s
Legal Centre Trust which gave rise to the judgment of the
Constitutional Court in
Women’s Legal Centre Trust v
President of the Republic of South Africa & Others
2009 (6)
94 (CC). (Mr Simelane’s affidavit was attached to the
answering papers in the present matter.) Further information
is
provided in the affidavit by Ms JL Williams, an attorney and the
director of the WLC. In the current proceedings the Master
has
annexed a copy of the Muslims Marriages Bill and has said that it is
on the legislative programme for 2013.
From the applicant’s replying papers it seems
that the Bill is not in truth on the legislative calendar for this
year. There
is no evidence from the Master or Minister as to what
has happened since 2009. Ms Williams points out that in the
Hassam
matter (see para 1 above) the Minister’s deponent said (in
2007) that the likelihood was that the legislative process for
the
promulgation of the Bill would start that year. Given the absence of
progress after 2007, the WLC sought relief by way of
direct access
to the Constitutional Court in the
Women’s Legal Centre
Trust
case
supra
but the Constitutional Court ruled that
direct access was not permissible (that was the case in which Mr
Simelane made the affidavit
previously mentioned). In January 2010
the Department informed the WLC that the Bill was on the legislative
timetable for 2010.
In the event, the Bill was only published in
December 2010, with comments to be submitted by 15 March 2011.
During July 2011
the Department informed the WLC that comments were
being evaluated and that the intention was to obtain Cabinet’s
approval
by October/November 2011. About a year later, on 6 November
2012, the WLC asked the Department to furnish it with the revised
version of the Bill. The Department’s response was that a
revised draft of the Bill did not yet exist and that the Department
was still in the process of evaluating comments.
The Master says, and I have no reason to doubt, that
the topic is a sensitive one and that some Islamic stakeholders
consider
that the proposed legislation will trench upon their
fundamental right to freedom of religion as guaranteed by s 15(1)
of
the Constitution. Nevertheless, the nettle will need to be
grasped sooner or later. There is no explanation from the Master or
Minister in the present case as to why there has been such a delay
since 2009.
For obvious reasons a court would be most reluctant to
make orders affecting the substantive law in this area. It is a
sensitive
subject requiring widespread consultation. The appropriate
regulation of Islamic marriages requires more detailed provisions
than a court could appropriately incorporate in a judicial order (as
is apparent from the content of the Bill published in December
2010). Ms Bawa acknowledged that the orders sought in prayers B7 and
B8 would be very blunt instruments. They may give considerable
offence to sectors of the Islamic community. There may come a time
when, owing to continued lethargy or paralysis on the part
of the
executive promoters of legislation in this field, a court will need
to intervene. However, given the evidence that the
current Bill has
been placed or will shortly be placed on the legislative program, it
seems to be desirable that some further
opportunity should be
allowed for this process to follow its course. I made a suggestion
along these lines to Ms Bawa and Mr
Papier, and this gave rise to an
agreement that the application for the relief sought in prayers B7
and B8 be postponed to 20
August 2014 (a period of about ten months)
on the basis that the Minister would undertake to file an affidavit
by 15 July 2014
setting out the progress which has been made in
regard to the Bill. Although Ms Bawa did not concede that the relief
sought in
prayers B9 and B10 should similarly be postponed, I think
those prayers too should stand over for later determination. They
are
expressed as being in the alternative to prayers B7 and B8.
Furthermore, if the proposed Bill is enacted into law, the need for
prayers B9 and B10 may well fall away.
I express no opinion as to whether, in the absence of
satisfactory progress in the enactment of legislation by the time of
the
next hearing, a court should grant relief and if so as to what
form the relief should take. I venture to suggest, though, that
if
significant progress in the legislative process has not been made by
August 2014 the one point that is unlikely to be received
with
judicial sympathy is that the national executive has not had enough
time to bring appropriate legislation before Parliament.
Conclusion
The costs in general of the application must stand over
for later determination. As to the costs of the hearing on 10
October
2013, the applicant has succeeded in having her objection to
the liquidation and distribution account upheld and in being
recognised
as Moosa’s surviving spouse. However, none of the
respondents who filed notices of opposition opposed this particular
relief.
Although submissions were made on matters which will now
stand over for later determination, those matters will need to be
argued
afresh on the postponed date in the light of intervening
developments. In my view, the costs of the hearing on 10 October
2014
should be determined with reference to the relief which the
applicant has succeeded at this stage in obtaining. Since that
relief
was not opposed by any of the participating respondents, I
think it appropriate that the parties should bear their own costs in
relation to the hearing of 10 October 2013.
I thus make the following orders (which incorporate the
orders to which the parties have consented):
[a] The seventh respondent’s decision,
taken on or about 25 February 2013, disallowing the third objection
lodged
by the applicant against the liquidation and distribution
account in the estate of the late Moosa Ely (Estate No 4190/2010),
namely
an objection against the failure of the account to recognise
the applicant as the deceased’s surviving ‘spouse’
for purposes of the
Intestate Succession Act 81 of 1987
and as a
‘survivor’ for purposes of the Maintenance of Surviving
Spouses Act 27 of 1990, is set aside in terms of
s 35(10)
of the
Administration of Estates Act 66 of 1965
, and the executor of the
deceased’s estate is directed to amend the account so as to
recognise the applicant’s status
as aforesaid. No further
orders are made in respect of the relief sought in prayers B1 to B6
of the amended notice of motion.
[b] In respect of the relief sought in prayers B11 and
B12 of the amended notice of motion, and by agreement between the
parties,
the following orders are made:
(i) The first respondent is removed as the executor in
the said deceased estate with immediate effect.
(ii) It is directed that the first respondent shall not
be entitled to any remuneration in her capacity as the executor of
the deceased
estate.
(iii) The first respondent shall, by no later
than 30 October 2013, account to the seventh respondent for her
administration
of the deceased estate, including for any income
earned from any estate assets during the period of her executorship.
(iv) The applicant and the
curatrix ad
litem
on behalf of the third and fourth respondents shall, within
5 (five) days of this order, submit duly completed nomination forms
nominating Ms Yvette Cloete of Yvette Cloete & Associates as
executor of the deceased estate in place of the first respondent.
(v) It is recorded that Ms Cloete has agreed
to accept such nomination as executor of the deceased estate on a
pro
bono
basis and has agreed to file a bond of security in terms of
s 23
of the
Administration of Estates Act 66 of 1965
within 5
(five) days of the date of this order.
(vi) The seventh respondent shall, on receipt
of the nomination forms and the bond of security referred to in (iv)
and
(v), take all necessary steps to appoint Ms Cloete as executor of
the deceased estate by no later than 1 November 2013.
[c] By agreement between the applicant and
the seventh and eighth respondents:
(i) the application for the relief sought by the
applicant in prayers B7 and B8 of the amended notice of motion dated
28 June 2013
is postponed for hearing in the fourth division on 20
August 2014;
(ii) the eighth respondent shall, by no later
than 15 July 2014, file a supplementary affidavit in which he sets
out
the progress made in respect of the enactment of the Muslim
Marriages Bill of 2011 and/or any similar legislation;
(iii) the applicant shall be entitled, by no
later than 31 July 2014, to file an affidavit in reply to any such
affidavit
delivered by the eighth respondent;
(iv) the applicant and the seventh and eighth
respondents shall file supplementary heads of argument on 6 and 13
August
2014 respectively.
[d] The application for the relief sought by
the applicant in prayers B9 and B10 of the amended notice of motion
is likewise
postponed for hearing on 20 August 2014.
[e] The parties shall bear their own costs in
relation to the proceedings for the removal of the first respondent
as
executor.
[f] The parties shall bear their own costs in
relation to the proceedings for the relief sought in prayers B1 to B6
(which
relief has been disposed of by way of the order made in [a]
above), including the costs of the appearance on 10 October 2013.
[g] All other questions of costs as between
the applicant and the seventh and eighth respondents shall stand over
for
determination at the hearing on 20 August 2014.
______________________
ROGERS J
APPEARANCES
For First Applicant: Adv N Bawa & Adv M Adhikari
Instructed by:
Women’s Legal Centre
Cape Town
(Ref: J Williams)
For First Respondent: Adv S Banderker
Instructed by:
Marjorie Bingham Attorneys
(Ref. M Bingham)
For Second & Third Respondents: Adv F Jakoet
(
as curatrix ad litem)
For Seventh & Eighth Respondents: Adv G Papier
Instructed by:
The State Attorney
Cape Town
(Ref. M Faure)